Challenging Selective Enforcement of Traffic Regulations After the Disharmonic Convergence: Whren v. United States, United States v. Armstrong, and the Evolution of Police Discretion^
Once upon a time, being black and behind the wheel was a crime on Volusia County, Florida's stretch of Interstate 95. The books carried no law forbidding such a thing, of course, but to the hundreds of AfricanAmerican motorists stopped on I-95 in the early 1990s it certainly might have seemed that way. In an investigative report detailing the highway patrol tactics of the Volusia County Sheriff's Department during the years 1989 to 1992, the Orlando Sentinel revealed some startling statistics: Among more than one thousand motorists whose traffic stops are documented on Sheriff's Department videotapes obtained by the newspaper through Florida's open records statute, almost seventy percent were AfricanAmerican or Hispanic, a figure the story's authors called "enormously disproportionate . . . because the vast majority of interstate drivers are white. "1 Just as unsettling, more than eighty percent of the cars that were searched after being stopped were driven by African-Americans or Hispanics.2
The inference that a motive much darker than simple highway safety drove those stops is a reasonable one. The Volusia County deputies responsible for the stops-members of a unit called the Selective Enforcement Team, formed in 1989 to combat drug trafficking under the Florida Contraband Forfeiture Act3-were technically following the law in detaining those motorists. Each of the 1084 stops documented on the video footage was the result of an actual traffic violation. Despite the violations, fewer than one percent of the drivers stopped-9 out of 1084received citations for breaking traffic laws, and by August of 1992, when the Sentinel's report ran, Volusia County's Selective Enforcement Team had seized almost $8 million in cash under the Contraband Act, most of it from minority motorists traveling north along 1-95.5
Today, judicial legitimation of such police tactics means that Volusia County's Selective Enforcement Team would have full clearance to live up to its name.6 Traffic violations otherwise below police radar frequently supply the necessary probable cause in those instances where officers have allowed race into their calculus in deciding to stop a minority motorist; when that motorist challenges his stop in court by invoking his Fourth Amendment right to be free from unreasonable searches and seizures,7 the court can respond at best with a figurative shrug and the acknowledgment that, well, the police did have probable cause. Theophilis Bell, convicted of possession of cocaine with intent to distribute, can certainly attest to that.8 Des Moines, Iowa police officers spotted Theophilis one night riding his bicycle without a headlamp, a violation of Iowa law.9 He was arrested for this indiscretion.10 During a search incident to the arrest, the officers discovered a package of cocaine base, an offense for which the luckless cyclist was convicted.11 Refusing to consider Theophilis's claim that the real reason he was stopped was because he was African-American, the Eighth Circuit cited a pair of recently decided Supreme Court cases: Whren v. United States12 and United States v. Armstrong.13 The manner in which these two cases have been applied by the Eighth and at least one other federal circuit in the brief time since the Court decided them poses significant problems for minority motorists who may have legitimate claims of selective enforcement; in both instances the opinions have combined to render the Fourth Amendment and the Equal Protection Clause essentially useless in constraining such conduct by police.
The Fourth Amendment performs two separate but entwined functions: first, it balances the interests of society and its citizens, weighing the degree of intrusiveness of a particular police action against the law enforcement interest that action seeks to further; second, it provides a mechanism for controlling police discretion. …